Overview of The Legal and Justice System

1. Basic Concepts and Type of Laws

• Constitutional law
• Statutory law
• Substantive law
• Procedural law
• Administrative law
• Common law
• Civil Law
• Civil and criminal actions of fraud
• Criminal law
• International law

2.            Systems of Government

• Unitary system
• Federal system

3.           The Court System

• Establishment, structure, composition and jurisdiction of courts
• Supreme Court
• Court of Appeal
• High Court
• Ant-corruption courts
• Employment and Labour Relations Court
• Environmental and Land court
• International Court of Justice
• Magistrates Court
• Court Martial
• Kadhi’s Court
• Distinction between Courts and Tribunals
• Tiered court system
• Jurisdiction and venue

4.           Alternative Dispute Resolutions (ADR)

• Nature of alternative dispute resolutions (ADR)
• Nature and types of disputes
• Legal framework governing ADR
• General principles of ADR
• Negation and Conciliation
• Mediation
• Arbitration
• Dispute Review Boards
• Traditional dispute resolution mechanisms

5.          Common Legal System

• The common law and substantive law
• The doctrine of stare decisis and case law
• Adversarial judicial process

6.           Civil Legal System

• Codified Principles
• Inquisitorial judicial process
• Anti-corruption courts

 

CHAPTER ONE

BASIC CONCEPTS AND TYPE OF LAWS

By its nature, fraud examination is a law-intensive field. Legal issues related to fraud are often complex, and their interpretation might require professional legal assistance. CFFEs should always consult with legal advisors if legal questions arise during a fraud examination.

 

Even with the availability of legal guidance, however, a fraud examiner should be familiar with certain aspects of the law. Often, the success of an investigation hinges on the fraud examiner following the proper legal procedures, whether dealing with a suspect’s rights, collecting documents, or interviewing witnesses.

 

 

Basic Concepts of the Law

The structure and substance of the legal system in each jurisdiction can vary significantly, and so legal issues that arise in fraud examinations will also be different from place to place. The materials in the Law section of the Fraud Examiners Manual are designed to explain the common types of legal systems and approaches to fraud-related issues. White-collar crime often crosses jurisdictional borders, and so fraud examiners should be familiar with their home jurisdiction’s legal processes, as well as have a basic understanding of the systems that they might encounter in foreign jurisdictions.

 

Types of Laws

There are different types of law that are determinative to the outcome of legal disputes. The main types include constitutional law, statutory law, common law, administrative law, and international law.

 

Public law

It consists of those fields or branches of law in which the state has a direct interest as the sovereign.

It is concerned with the Constitution and functions of the various organizations of government including local authorities, their relations with each other and the citizenry. Public law includes:

• Criminal Law
• Constitutional Law
• Administrative Law

Public Law asserts state sovereignty.

 

Private law

It consists of those branches of law in which the state has no direct interests as the state sovereign.

It is concerned with the legal relationships between persons in ordinary transaction e.g.

• Law of contract
• Law of property
• Law of succession
• Law of marriage
• Law of torts

 

Constitutional Law

Constitutional law is the body of law established by a sovereignty’s constitution, and it deals with the fundamental principles by which a government exercises its authority.

 

Constitutions are government charters. They establish and empower the various branches of government, and they set up the rights and obligations of individuals under the government’s jurisdiction.

There are six core principles of constitutional law:

• Supremacy clause: The Constitution is the supreme law of the land. Any state or federal law that conflicts with the Constitution is void.
• Federalism: Power is divided between the national government and the states.
• Separation of powers: The national government is divided into three branches: legislative, executive, and judicial. Each branch has specific powers and responsibilities.
• Checks and balances: Each branch of government has some power to limit the powers of the other branches. This helps to prevent any one branch from becoming too powerful.
• Popular sovereignty: The ultimate source of government power is the people.
• Limited government: The government only has the powers that are granted to it by the Constitution.

 

 

 

Sources of Constitutional Law:

1. Textual Constitutions:In countries like the United States, India, and Singapore, constitutional law is based on a written document ratified at the nation’s inception. This text outlines the framework for governance and sets out the distribution of powers among different branches of government.
2. Uncodified Constitutions:Contrary to textual constitutions, some countries like the United Kingdom rely on uncodified rules that include legislative statutes and constitutional conventions. These conventions are not always clearly defined within constitutional law and may be subject to interpretation.

 

Characteristics of Constitutional Law

Constitutional law is characterized by several key features that define its nature and scope:

1. Foundation of Government Authority: Constitutional law establishes the authority of the government, outlining the powers and limitations of each branch.
2. Protection of Rights: A fundamental aspect of constitutional law is the protection of individual rights and freedoms against government infringement.
3. Division of Powers: Constitutional law typically delineates the separation of powers among different branches of government to prevent any one branch from becoming too dominant.
4. Rule of Law: Constitutions establish the principle that all individuals and entities, including the government itself, are subject to and accountable under the law.
5. Evolutionary Nature: Constitutional law evolves over time through interpretations by courts and legislative actions, adapting to societal changes and legal developments.
6. Legislative Procedures: It sets out rules for how laws are made, amended, or repealed, ensuring a structured process for governance.
7. Civil Liberties and Human Rights: Constitutional law safeguards human rights and civil liberties, protecting individuals from governmental overreach.
8. Supremacy: The constitution is considered the supreme law of the land, with all other laws required to conform to its provisions.
9. Checks and Balances: Constitutional law often incorporates mechanisms such as checks and balances to prevent any one branch from abusing its power.
10. Judicial Review: In many legal systems, constitutional law includes provisions for judicial review, allowing courts to assess the constitutionality of laws or government actions.

 

Statutory Law

Statutory law is written law created by a legislature or other governing authority, and it includes statutes and codes passed by the local, regional, or national legislatures (and regulations passed by administrative bodies). In most jurisdictions, criminal law is based on statutes and codes.

Statutory law is the opposite side of the legal coin to constitutional law. Here’s a breakdown of its key features:

• Written Laws: Statutory law consists of written enactments passed by a legislative body, like Congress in the United States. These written laws are often compiled into codes for easier reference.
• Specific and Detailed: Statutory laws tend to be quite specific, outlining precise rules and regulations on various matters. This is in contrast to the broader principles established in constitutions.
• Varied Levels: Statutory law exists at different levels of government, from federal statutes passed by national legislatures to state and local laws enacted by regional governing bodies.
• Subject to Interpretation: Courts play a role in interpreting statutory law, clarifying ambiguities and ensuring consistent application.
• Changeable: Statutory law is more dynamic than constitutions. Laws can be amended, repealed, or replaced by new legislation as societal needs evolve.
• Focus on Specific Issues: Statutory law addresses a wide range of issues, from traffic regulations and criminal codes to environmental protection and commercial law.

 

Common Law

It may be described as a branch of the law of England which was developed by the ancient common Law Courts from customs, usages and practice of the English people.

 

These courts relied on customs to decide cases before them thereby giving such customs the force of law. The court of Kings Bench, Court Exchequer and the court of common pleas are credited for having developed common law.

 

These courts standardized and universalized customs and applied them in dispute resolution.

At first, common law was a complete system of rules both criminal and civil.

The development of the common law is traceable to the Norman Conquest of the Iberian Peninsula. The Romans are credited for having laid the foundation for the development of the common law.

 

Characteristics of common law

1. Writ System.
2. Doctrine of stare decisis

 

1. The writ system

At common law, actions or cases were commenced by a writ. There were separate writs for separate complaints. Writs were obtained at the Royal office.

 

A Writ stated the nature of the compliant and commanded the police officer of the country in which the defendant resided to ensure that the he appeared in court on the mentioned date. Often, police officers demanded bribes to compel the defendant to appear in court and would not compel an influential defendant.

 

The writ system did not recognize all possible complains and many would be plaintiffs could not access the courts.

 

It also lengthened the judicial process.

 

2. Doctrine of stare decisis

Stare Decisis literally means “decision stands” or “stand by the decision.” This is a system of administration of justice whereby previous decisions are applied in subsequent similar cases. At common Law, a judge having once decided a case in a particular manner had to decide all subsequent similar cases similarly.

 

This made the common Law system rigid. Common Law consists of decisions handed down by courts of law on the basis of customs and usages and may be described as the English Customary Law.

 

Problems/shortcomings of common law

1. Writ System: Cases at common Law were commenced by a writ issued by the Royal office. There were separate writs for different complaints. However:
2. This system did not recognize all possible complaints and many would be plaintiffs had no access to the courts
3. The writ system encouraged corruption
4. It lengthened the course of justice

 

2. Rigidity/inflexibility: The common Law courts applied the doctrine of Stare Decisis. This practice rendered the legal system rigid and hence unresponsive to changes.

 

3. Procedural technicalities: The Common Law procedure of administration of justice was highly technical. Common Law courts paid undue attention to minor points of procedure and many cases were often lost on procedural matters.

 

4. Delays: The administration of justice at common Law was characterized by delays. Defendants often relied on standard defenses to delay the course of justice. These defenses were referred to as essoins and included; Being out by floods, being unwell or being away on a crusade. If sickness was pleaded, the case could be adjourned for 1 year and 1 day.

 

5. Non-recognition of trusts: Common Law did not recognize the trust relationship. This is an equitable relationship whereby a party referred to as a trustee, expressly, impliedly or constructively holds property on behalf of another known as beneficiary. At common Law beneficiaries had no remedies against errant trustees and trustees had no enforceable rights against beneficiaries.
6. Inadequate remedies: Common Law courts had only one remedy to offer namely monetary compensation or damages. They could not compel performance or restrain the same.

 

7. Inadequate protection of borrowers: At common Law, a borrower who failed to honour his contractual obligations within the contractual period of repayment would lose not only his security but the total amount paid.

 

The doctrines of equity

Equity is a set of rules formulated and administered by the court of chancery before 1873 to supplement the rules of common law. This court dealt only those cases where common law either provided no remedy or provided a remedy which was not adequate. Equity therefore is a body of principles constituting what is fair and right.

 

 

Origins of equity

Citizens dissatisfied with the decision of the judges of common law often made petitions to the kings in council. The petitions were decided by the king himself or by his council. Due to much work, the king later delegated his function to his lord chancellor (advisor to the king) a clergyman to decide the appeals applying the rules of natural justice and morality.

 

The petitions to the Lord Chancellor were made on the following grounds:-

 

1. The common law courts provided no remedy for certain wrongs e.g. trusts were not recognized.
2. The remedies provided in certain situations were not satisfactory e.g. in case of breach of contract, the only remedy available was damages, and specific performances injunctions were not recognized.
3. The common law courts sometimes acted under pressure or influence or bribes of the other party. The remedies granted by equity courts become known as equitable remedies.

 

Principles of Equity

During the early development of equity the early chancellors acted at their own discretion, but eventually they did follow the decisions of early chancellors. But the 8th century, some firm rules of equity were established which guided later chancellor in deciding disputes. These rules are known as equitable maxims – which are propositions or statement of equitable rules.

 

The Maxims of Equity include:

1. He who seeks equity must do equity
2. He who comes to equity must come with clean hands
3. Equity is equality (Equality is equity)
4. Equity looks to the intent or substance rather than the form
5. Equity regards as done that which ought to be done
6. Equity imputes an intent to fulfil an obligation
7. Equity acts in personam
8. Equity will not assist a volunteer (Equity favours a purchaser for value without notice)
9. Equity will not suffer a wrong to be without a remedy (Where there is a wrong there is a remedy for it) Ibi jus ibiremedium
10. Equity does not act in vain
11. Delay defeats equity
12. Equity aids the vigilant and not the indolent (Vigilantibus non dorminentibus jura subveniunt)

 

The distinction between legal and equitable remedies remains relevant to students of business law; however, because these remedies differ to seek the proper remedy for a wrong one must know that remedies are available.

 

1. He who seeks equity must do equity

This maxim means that a person who is seeking the aid of a court of equity must be prepared to follow the court’s directions, to abide by whatever conditions that the court gives for the relief. And this is most commonly applied in injunctions. The court will normally impose certain conditions for granting the injunction.

 

2. He who comes to equity must come with clean hands

This scenario was summed up in the case of Jones v. Lenthal (1669) as “He who has committed inequity shall not have equity”. There is a limit to this rule.

In some cases the court has the discretion whether to apply this maxim. Limit to the extent that maxim can be applied The limit is this: It is not all unclean hands that will deny a plaintiff his remedy. The conduct must be relevant to the relief being sought.

In Loughran v. Loughran (1934), Justice Brandeis said equity does not demand that its suitors shall have lead blameless lives. We are not concerned with issues of morality. If the breach is a trifle, a small matter, a minor breach, then that in itself should not deny the plaintiff the remedy.

The first maxim deals with now/future, the second deals with conduct in the past.

 

3. Equity is equality (equality is equity)

In general, the maxim will be applied whenever property is to be distributed between rival claimants and there is no other basis for division.

For example, husband and wife who operate a joint bank account; each spouse may deposit or take out money. Upon divorce, the maxim applies. They share 50-50. The authority is that equity does not want to concern itself with the activities of a husband and wife – to go into the bedroom and make deep inquiries, hence equal division.

Another example relates to trusts. How do you divide the property? Say there are three beneficiaries. Then one of the beneficiaries passes away, i.e. one of the shares fails to vest.

What should accrue to the surviving beneficiaries? Redistribute equally, applying the rule “Equity is equality”.

 

4. Equity looks to the substance or intent rather than the form

This maxim makes a distinction between matters of substance and matters of form. Equity will give priority to substance (intention) as opposed to form, if there is a contradiction. This maxim is normally applied to trusts. There have been cases where the court has inferred a trust even where the word trust does not appear.

 

Another illustration is the remedy of rectification of contract, where equity looks to the intention, where intention matters.

 

This maxim lies at the root of the equitable doctrines governing mortgages, penalties and forfeitures. Equity regards the spirit and not the letter.

 

Courts of Equity make a distinction in all cases between that which is a matter of substance and that which is a matter of form; and if it finds that by insisting on the form, the substance will be defeated, it holds it to be inequitable to allow a person to insist on such form, and thereby defeat substance.

Thus if a party to a contract for the sale of land fails to complete on the day fixed for completion, at law he is in breach of his contract and will be liable for damages e.g. for delay.

 

Yet in equity it will usually suffice if he is ready to complete within a reasonable period thereafter, and thus the other party will not be able to avoid performance.

 

5. Equity regards as done that which ought to be done

This maxim has its most frequent application in the case of contracts. Equity treats a contract to do a thing as if the thing were already done, though only in favour of persons entitled to enforce the contract specifically and not in favour of volunteers.

 

Agreements for value are thus often treated as if they had been performed at the time when they ought to have been performed. For example a person who enters into possession of land under a specifically enforceable agreement for a lease is regarded in any court which has jurisdiction to enforce the agreement as if the lease had actually been granted to him.

 

In Walsh v. Lonsdale, the agreement for lease was as good as the agreement itself where a seven-year lease had been granted though no grant had been executed. An equitable lease is as good as a legal lease. Equity looked on the lease as legal the time it was informally created.

 

In Souza Figuerido v. Moorings Hotel it was held that an unregistered lease cannot create any interest, right or confer any estate which is valid against third parties. However, it operates as a contract inter-parties; it is valid between the parties and can be specifically enforced. The tenant in this case was therefore liable to pay rent in arrears.

 

6. Equity imputes an intent to fulfill an obligation

If a person is under an obligation to perform a particular act and he does some other act which is capable of being regarded as a fulfilment of this obligation, that other act will prima facie7 be regarded as fulfilment of the obligation.

 

7. Equity acts in personam

This is a maxim which is descriptive of procedure in equity. It is the foundation of all equitable jurisdictions.

 

Courts of law enforced their judgments in Rem (against property of the person involved in the dispute), e.g. by writs but the originally equitable decrees were enforced by Chancery acting against the person of the defendant (i.e. by imprisonment) and not in Rem Later, equity invented the alternative method of sequestrating the defendant’s property until he obeyed the decree.

 

These methods can still be used where necessary, but other and more convenient methods are often available today.

 

Although the maxim has lost much of its importance, it is responsible for the general rule that an English court has jurisdiction in equitable matters, even though the property in dispute may be situated abroad, if the defendant is present in this country. This was so held in Penn v. Baltimore where the Defendant was ordered to perform a contract relating to land in America.

 

However there must be some equitable right arising out of contract, trust or fraud.

 

8. Equity will not assist a volunteer

Equity favours a purchaser for value without notice. A volunteer is a person who has not paid consideration.

 

The exception to the application of this maxim is in Trust. In Jones v. Lock (1865) it was stated that the court is prevented from assisting a volunteer regardless of how undesirable the outcome might appear. Equity will therefore not grant specific performance for a gratuitous promise.

 

9. Equity will not suffer a wrong to be without a remedy

“Ibis jus ibiremedium”: This means that if there is a wrong, there is a remedy for it. He who seeks solace in the arms of equity will not go away broken hearted.

 

No wrong should be allowed to go unredressed if it is capable of being redressed by equity.

 

However, not all moral wrongs can be redressed by equity.

 

The maxim must be taken as referring to rights which are suitable for judicial enforcement, but were not enforced at common law owing to some technical defect.

 

10. Equity does not act in vain

The court of equity is shy and does not want to be embarrassed by granting remedies that cannot be enforced or issuing orders that cannot be obeyed by the Plaintiff.

 

11. Delay defeats equity or equity aids the vigilant and not the indolent: (vigilantabus, non dormientibus, jurasubveniunt)

A court of equity has always refused its aid to stale demands i.e. where a party has slept on his right and acquiesced for a great length of time.

Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence. Where these are wanting, the Court is passive and does nothing.

 

Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “laches”.

 

This maxim, however, has no application to cases to which the Statutes of Limitation8 apply either expressly or, perhaps, by analogy. There are thus three cases to consider-

 

1. Equitable claims to which the statute applies expressly;
2. Equitable claims to which the statute is applied by analogy; and
3. Equitable claims to which no statute applies and which are, therefore, covered by the ordinary rules of laches.

 

12. Equity follows the law

The Court of Chancery never claimed to override the courts of common law. “Where a rule, either of the common or the statute law, is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law and can as little justify a departure from it.

 

It is only when there is some important circumstance disregarded by the common law rules that equity interferes. “Equity follows the law, but neither slavishly nor always.” If Common law and Equity conflict Equity prevails.

 

Both Common law and Equity are recognized as sources of law of Kenya

 

Of the Judicature Act.

However, only the substance of common Law and the doctrines of equity are recognized.

Their application by Kenyan Courts is further qualified. A court of law can only rely on Common law or equity as a source of Law:

1. In the absence of an Act of parliament.
2. If it is consistent with written law including the Constitution.
3. If it was applicable in England on 12/08/1897.
4. If the circumstances of Kenya and its inhabitants permits.
5. Subject to such qualifications as those circumstances may render necessary.

 

Administrative Law

Administrative law is concerned with the rules and procedures of administrative agencies of government. Administrative agencies have the authority to legislate, adjudicate, and enforce laws within their specific areas of delegated power. Typically, administrative agencies exist in the executive branch and are created and assigned specific tasks by the legislature.

 

Administration is the act or process of administering, which simply means it is the act of meting out, dispensing, managing, supervising and executing government functions

 

It is the law relating to control of governmental power. It can also be said to be the body of general principles, which govern the exercise of powers and duties by public authorities.

 

The primary purpose of administrative law, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse.

Administrative law is also concerned with the administration and dispensation of delivery of public services. However it does not include policy making.

 

Administrative law is concerned with how the government carries out its tasks.

The government tasks include delivery of public services such as health, security, facilitating trade, arbitration of disputes, and collection of revenue.

 

Administrative law is the law relating to the executive branch of government. The law deals with a variety of things e.g.

1. The establishment of public authorities e.g. the city council, establishment of public bodies and organs.
2. The nature of the tasks given to various public organs and public agencies.

• The legal relationship between the public bodies themselves and also between the public agencies and the public and between public agencies and the citizens.

 

Administrative Law is concerned with the means by which the powers and duties of the various public agencies, public bodies and public institutes can be controlled.

 

Functions of administrative law

Administrative functions can be divided into a number of broad categories namely

1. Ministerial functions; Examples of Ministerial Functions are those functions carried out or performed by Government Ministers in their implementation of governmental policies and programs. Examples include appointment of public officials by Ministers and the grant of ministerial approvals and consents.
2. Administrative functions: these are the functions carried out by public officials and public bodies in their management of various governmental bodies in their provision of services for example educational services and in their administration of various social services as in the case of social security services.
3. Legislative functions: These include the function of making or creating subsidiary legislation. The responsibility of legislative functions is on the respective Ministers‟. The duty of making by-laws is also the respective ministers.
4. Judicial functions: These primarily involve the functions of determining claims or disputes between individuals and other bodies. A good example of administrative body that performs judicial functions is the Industrial Court which functions as a court of law.
5. Quasi Judicial functions: These involve the exercise of powers which are fundamentally judicial but without the usual trappings of a court of law for example without strict requirement of rules of evidence or the observance of rules of evidence, without strict requirements of examination of witnesses and without other legal Technicalities. A good example being the Liquor Licensing Court, the Land Control Boards and the Motor Vehicle Licensing Authorities.

 

Functions/purposes of administrative law

1. It ensures proper dispensation of services.
2. It seeks to protect citizens from abuse of power.
3. To keep the powers of government i.e powers of various public bodies within their legal bounds, so as to protect citizens from their abuse. Abuse of power can arise either from malice, bad faith or even from the complexities of the law.
4. There are duties placed in public bodies (public institutions) such that another function of the law is to see that the duties are performed and that the public agencies can be compelled to perform their duties where there is laxity or where they refuse or otherwise fail to do so.

 

International Law

International law is the body of legal rules, regulations, and accepted practices observed by nations, and it defines nations’ legal responsibilities in their conduct with each other and with private individuals and transnational companies. International law is enforced primarily through diplomacy and for reasons of courtesy or expediency.

 

Sources of international law include international conventions and treaties, international customs (i.e., international law that derive from custom), general principles of law recognized by the legal systems of civilized nations, the decisions of international and municipal courts, and the publications of scholars.

Here’s a breakdown of its key aspects:

• Actors: International law primarily applies to sovereign states, which are independent countries. However, it can also encompass international organizations and, to a lesser extent, individuals.
• Scope: The reach of international law is broad, covering a wide range of issues like:
  • War and Peace: It sets rules for armed conflict, aiming to minimize violence and protect civilians (international humanitarian law).
  • Diplomacy: It establishes frameworks for negotiation, treaties, and international cooperation.
  • Trade: International trade law governs commerce between countries.
  • Human Rights: International human rights law protects fundamental rights and freedoms.
  • Environment: International environmental law addresses issues like pollution and climate change.
• Sources: Unlike national legal systems, international law lacks a central authority to enforce its rules. Its sources include:
  • Treaties: Agreements between states that are legally binding.
  • Customary International Law: Established practices accepted as law by the international community.
  • General Principles of Law: Fundamental legal principles shared by most legal systems.
  • International Jurisprudence: Theories and rulings of international courts and tribunals.
• Enforcement: Enforcement of international law can be challenging. It often relies on:
  • Self-interest: States comply to maintain good relations and avoid sanctions.
  • International Organizations: The United Nations and other bodies play a role in promoting compliance.
  • Domestic Courts: National courts can sometimes enforce international law principles.

 

Substantive and Procedural Law

Substantive law defines the type of conduct permissible and the penalties for violation; it is composed of the basic laws of rights and duties. When people say an act is “against the law,” they are referring to substantive law.

 

Substantive law can be further subdivided into public and private law. Public law governs the relationship between individuals and the state; it involves such areas as constitutional law, administrative law, and criminal law. Private law encompasses those areas where the legal system is used to resolve disputes between private parties. Examples of private laws are the laws concerning real property, contracts, civil wrongs (e.g., negligence), wills and estates, intellectual property, business organization law, and so on.

Substantive law defines offences and prescribes the punishment, for example:

• The Law of torts
• The Law of succession
• The Law of contract
• The Law of marriage
• The Penal Code

 

Procedural law defines the rules by which individual cases are decided; it sets out the rules of the legal system, including the procedures to be followed in hearing a grievance. Procedural law might include deadlines, filing requirements, steps to follow in bringing a claim, rules of evidence, and so on. Substantive law sets the terms of any dispute; procedural law dictates how a legal dispute is handled.

For example:

• The Civil Procedure Code
• The Criminal Procedure Code

 

Types of Legal Systems

Despite the wide variety of legal systems from the power structures of governments to the judicial processes there are patterns of legal systems in certain countries that makes it easier to evaluate the legal process in each jurisdiction. These patterns arise due to a combination of factors, such as regional ties, former colonial influences, and international initiatives to conform laws to model standards.

 

Common law systems

Common law systems, such as the legal system in the United States and those originating from British rule, rely on judge-made law that historically filled gaps when no written laws existed. Today, statutes largely govern common law. Precedent is crucial in common law systems through stare decisis, where past judicial decisions guide current interpretations and applications of laws. Common law courts are adversarial, with an emphasis on winning cases through evidence presentation and argumentation.

 

Civil law systems

Civil law systems are prevalent in Europe and South America. These systems rely heavily on comprehensive legal codes that encompass all laws within a country. Judicial decisions are secondary to these codes and do not set binding precedents for future cases. Civil law court proceedings are more inquisitorial than adversarial; judges play a more active role in investigating cases and determining outcomes based on established legal codes.

 

Hybrid or Mixed Systems

Hybrid or mixed legal systems combine elements of both civil and common law traditions. These systems vary by country but often integrate aspects of both adversarial and inquisitorial processes depending on the nature of the case.

 

Civil law

It is concerned with the rights and duties of persons i.e. individuals and corporations. Branches of civil law include:-

• Law of contract
• Law of torts
• Law of property
• Law of marriage
• Law of succession

When a person’s civil or private rights are violated, he is said to have a cause of action. Examples of causes of action:

• Breach of contract
• Defamation
• Assault
• Negligence
• Trespass to goods e.t.c

Causes of action are created by parliament through statutes as well as the common law and equity.

The violation of a person’s civil rights precipitates a civil case or action. The person whose rights are allegedly violated sues the alleged wrongdoer hence civil cases are framed as Plaintiff v Defendant.

It is the duty of the plaintiff to prove his allegations against the defendant. This means that the burden of proof is borne by the plaintiff. The standard of proof in civil cases is on a balance of probabilities or on a preponderance of probabilities i.e. the court must be satisfied that it is more probable than improbable than the plaintiff’s allegations are true.

If the plaintiff proves his allegations by evidence, he wins the case and is awarded judgment which may take the form of:-

1. Damages (monetary compensation)
2. Injunction
3. Specific performance
4. Account
5. Tracing
6. Winding up a company
7. Appointment of receiver

 

Some salient features of the civil law:

• Clear expression of rights and duties, so that remedies are self-evident.
• Simplicity and accessibility to the citizen, at least in those jurisdictions where it is codified.
• Advance disclosure of rules, silence in the code to be filled based on equity, general principles, and the spirit of the law.
• Richly developed and to some extent transnational academic doctrine inspiring the legislature and the judiciary.

 

Criminal law

This is the law of crimes. A crime is an act or mission committed or omitted in violation of public law e.g. murder, treason, theft, e.t.c. All crimes are created by parliament through statutes

A person who is alleged to have committed a crime is referred to as a suspect.

As a general rule, suspects are arrested by the state through the police at the instigation of the complainant. After the arrest, the suspect is charged in an independent and impartial court of law whereupon he becomes the accused.

Criminal cases are generally prosecuted by the state through the office of the Attorney General (AG) hence they are framed as R (the State) Vs Accused E.g. R v Kamenchu

Under the Constitution, an accused person is presumed innocent until proven or pleads guilty.

If the accused pleads not guilty, it is the duty of the prosecution to prove its case against him by adducing evidence i.e. the burden of proof in criminal cases is borne by the prosecution.

The standard of proof is beyond any reasonable doubt i.e. the court must be convinced that the accused committed the offence as charged.

In the event of reasonable doubt, the accused is acquitted. If the prosecution proves its case i.e. discharges the burden of proof, then the accused is convicted and sentenced.

 

The sentence may take the form of:-

1. Imprisonment
2. Fine
3. Probation
4. Corporal punishment
5. Capital punishment
6. Community service
7. Conditional or unconditional discharge

Under the Constitution, a person cannot be held guilty of an act or omission which was not a criminal offence on the date of omission or commission.

 

Burden of proof

The burden of proof is a legal concept that refers to the responsibility of a party in a dispute to present evidence to convince the decision-maker (judge or jury) of their position. There are two main aspects to the burden of proof:

• Burden of production: This is the initial duty to provide enough evidence on an issue so it can be considered. If the party with the burden of production doesn’t meet this minimum threshold, the case may be dismissed.
• Burden of persuasion: This is the level of evidence required to convince the decision-maker of your case. There are different standards of persuasion depending on the type of case:
  • Beyond a reasonable doubt: This is the highest standard and is used in criminal cases. The prosecution must convince the jury that the defendant is guilty with no other plausible explanation.
  • Preponderance of the evidence: This is the most common standard and is used in civil cases. The plaintiff (the party bringing the case) must convince the jury that their claim is more likely true than not.
  • Clear and convincing evidence: This is a higher standard than preponderance of the evidence but lower than beyond a reasonable doubt. It’s used in some civil cases, such as fraud or will contests.

 

Civil Case vs. Criminal Case in burden of proof

The standard of burden of proof is highest in a criminal case because criminal cases often affect a defendant’s freedom. Prosecutors are required to provide evidence that sustains that a defendant’s guilt is beyond a reasonable doubt.

The purpose of a civil case is to hold a defendant accountable to pay the victim a form of compensation. Various standards in determining the payment are considered depending on the claim and the proceeding.

Insurance claims

In an insurance claim, the plaintiff has the burden of proof and is required to prove their right to compensation based on the insurance policy and submitted claim. Insurance companies will often use the courts to determine which company is responsible for providing coverage when more than one insurer is involved.

Sometimes the insured has several different policies covering similar or related risks or one party’s insurance company may sue another as is the case of a car accident involving two or more vehicles. The insurers are required to demonstrate either that the loss was caused by an event that was not covered under the policy, or that another insurance company is responsible for the coverage.

 

Who bears the burden of proof in a civil case?

In a civil case, the burden of proof is borne by the plaintiff or the person filing the lawsuit, and this must be done by a preponderance of the evidence. The plaintiff must convince a jury that the claims are more likely true than not.

 

With which party does the burden of proof lie in a criminal trial?

In a criminal trial, the burden of proof lies with the prosecution. The prosecution must convince the jury beyond a reasonable doubt that the defendant is guilty of the charges brought against them.

 

Who bears the burden of proof in an insurance case?

In an insurance case, the insured bears the burden of proof. The insured has to prove that the claim falls under the insurance policy. The insurer, on the other hand, bears the burden of proof in demonstrating that the claim does not fall under the insurance policy, and, therefore, is not responsible for paying any claims.

 

The Bottom Line

The burden of proof is a legal standard that requires parties to provide evidence to demonstrate that a claim is valid. Three levels of the burden of proof, “beyond a reasonable doubt,” a “preponderance of the evidence,” and “clear and convincing” determine the level of evidence required for a claim.

 

Burden of Proof in Criminal Trials in Civil Law Jurisdictions

In civil law jurisdictions, the burden of proof in criminal trials is typically placed on the prosecution, similar to common law systems. However, there are some differences in how this burden is approached and the standard of proof required.

Standard of Proof in Criminal Trials: In civil law jurisdictions, including countries like France, Germany, and Japan, the standard of proof required in criminal trials is often described as being equivalent to “firmly convinced” or “intimate conviction.” This standard is notably higher than the “beyond a reasonable doubt” standard commonly used in common law systems.

Reasoning Behind Higher Standard: The rationale for this higher standard of proof in civil law jurisdictions stems from the historical development of legal systems. In civil law countries, where judges play a more active role in investigating cases and determining guilt or innocence, there is a greater emphasis on ensuring that only those who are truly guilty are convicted. The higher standard reflects a desire to minimize the risk of wrongful convictions and protect individual rights.

Role of Judges: In civil law jurisdictions, judges often take on a more investigative role compared to common law systems where adversarial proceedings are more prevalent. Judges may actively seek out evidence, question witnesses, and ultimately make a determination based on their assessment of the facts presented. This proactive approach by judges contributes to the higher standard of proof required in criminal trials.

Impact on Legal Proceedings: The higher standard of proof in civil law jurisdictions can have implications for how cases are prosecuted and defended. Prosecutors must present a compelling case that leaves little room for doubt, while defense attorneys may focus on challenging the evidence presented and raising doubts about the prosecution’s case.

 

Differences between civil wrong and crime

	CIVIL WRONG	CRIME
Definition	offence against another individual	Offence against the state
Purpose	To deal with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim.	To maintain the stability of the state and society by punishing offenders and deterring them and others from offending.
Standard of proof	Claimant must produce evidence beyond the balance of probabilities.	Beyond reasonable doubt
Parties involved	The plaintiff, the party that is suing The defendant , the one being sued	Prosecution which represent the state and the accused
Burden of proof	Claimant must give proof however, the burden may shift to the defendant in situations of Res Ipsa Loquitur (The fact speaks for itself).	“Innocent until proven guilty”: The prosecution must prove defendant guilty.
Type of punishment	Compensation (usually financial) for injuries or damages, or an injunction in nuisance.	A guilty defendant is subject to Custodial (imprisonment) or Noncustodial punishment (fines or community service). In exceptional cases, the death penalty.

 

What is the difference between civil and criminal fraud

Civil and criminal fraud both involve deception for personal gain, but they have some key differences:

 

Goal of the Case:

• Civil Fraud: Aims to recover damages or get a court order to prevent fraud. It’s a private dispute between individuals or entities.
• Criminal Fraud: Aims to punish the perpetrator and deter future fraud. It’s brought by the government (prosecution) on behalf of society.

Burden of Proof:

• Civil Fraud: Lower burden of proof, “balance of probabilities”. The plaintiff (claiming fraud) needs to show it’s more likely than not that fraud occurred.
• Criminal Fraud: Higher burden of proof, “beyond a reasonable doubt”. The prosecution needs to convince the jury there’s no doubt the defendant committed fraud.

Outcomes:

• Civil Fraud: Outcomes can include financial compensation for losses, return of stolen property, or an injunction to stop fraudulent activity.
• Criminal Fraud: Outcomes can include fines, imprisonment, and a criminal record.

 

Here’s a table summarizing the key differences:

Feature	Civil Fraud	Criminal Fraud
Goal	Recover damages, prevent fraud	Punish perpetrator, deter future fraud
Brought by	Victim (plaintiff)	Government (prosecution)
Burden of Proof	Balance of probabilities	Beyond a reasonable doubt
Possible Outcomes	Compensation, return of property, injunction	Fines, imprisonment, criminal record

 

Civil Wrong and Delict Actions

In common law jurisdictions, a civil wrong is a private wrong, such as fraud, that does not arise out of contractual obligations.

 

In civil law jurisdictions, the equivalent of a civil wrong is often called a delict. A delict is a culpable, wrongful act that causes injuries and results in liability for the person who committed the act.

 

To successfully bring a civil wrong or delict action, there are generally three requirements:

• A party must owe a duty to another party.
• The party that owes the duty breaches that duty.
• The breach results in losses.

 

A person who suffers a civil wrong is entitled to receive compensation for damages from the party responsible for the act.

 

Parallel Proceedings

Parallel proceedings are simultaneous criminal and civil actions against the same defendant that are based upon a single set of facts. For example, a victim of fraud might sue the fraudster in civil court while the fraudster is being prosecuted in criminal court. Some jurisdictions permit parallel proceedings, while others do not.

 

In jurisdictions that allow parallel proceedings, the government or the defendant can generally petition one of the courts for a stay of proceedings to have a proceeding temporarily suspended.

 

A court might order a stay of proceedings if it determines that the parallel proceeding would harm the government’s case or unduly prejudice the defendant. However, most courts are reluctant to grant a stay of proceedings under these circumstances.

Administrative Proceedings

In addition to civil and criminal actions, fraud cases are sometimes resolved in administrative proceedings. Administrative proceedings are non-judicial proceedings conducted by government agencies. In some jurisdictions, for example, the government agency responsible for collecting taxes also has the authority to adjudicate certain cases involving tax fraud.

 

Generally, administrative proceedings operate like civil courts with their own rules of evidence and procedure. In some administrative proceedings, the presiding officer is a special administrative judge; in others, the ultimate decision-maker is a board or tribunal.

 

Administrative Penalties

Imprisonment and other criminal penalties are not generally imposed in administrative proceedings. Although administrative penalties vary by jurisdiction, some common types of administrative penalties include the following:

• Monetary fines and penalties
• License suspension or revocation
• Debarment

 

Monetary Fines and Penalties

Monetary fines and penalties are imposed to punish the defendant for violating a law. This includes the payment of monetary damages, which are awarded to compensate victims for damages caused by fraud.

 

License Suspension or Revocation

Administrative proceedings can result in the suspension or revocation of a professional license. For example, a government medical board might revoke a doctor’s license to practice medicine after determining that the doctor engaged in health care fraud.

 

Debarment

Under some laws, individuals and businesses can be debarred (i.e., excluded) from participating in government programs. For example, a contractor who engages in procurement fraud might be prohibited from bidding on government contracts in the future.

 

Debarment can be temporary or permanent, and debarred parties are often added to a list that is maintained by the government agency and viewable by the public.

 

 

CHAPTER TWO

SYSTEMS OF GOVERNMENT

The most fundamental element to understanding a particular jurisdiction’s legal system is to identify the structure of its government. To know the laws that apply to a case, it is necessary to determine the system of government in the relevant jurisdictions. For example, suppose that a person in Montreal, Canada, has engaged in questionable banking transactions. Which laws would determine whether the conduct was fraudulent the laws of the Canadian federal government, the laws of the provincial government of Quebec, local laws, or a combination?

Additionally, what sources of law apply to determine the suspect’s rights regarding a potential investigation? Understanding the system of government can help answer these questions.

 

There are various ways to classify systems of government, but one of the most helpful for understanding the laws of a particular jurisdiction is whether the system uses a federal or unitary power structure. Moreover, almost every modern-day government can be classified as being either unitary or federal in nature.

 

The majority of countries are unitary systems, meaning that a central government holds all governmental power within the nation. This central government may delegate power to created agencies and regional governments, but it remains the supreme governmental authority in the country. While delegated powers might include law-making authority, substantive laws regarding criminal misconduct, including most fraudulent acts, are typically directly legislated by the central government.

 

The other major structural system of government, the federal system, features both a national government (typically called the federal government), along with semi-autonomous regional governments (often called states or provinces). Unlike unitary systems, not all governmental powers are held by a central authority. Rather than being delegated powers, the state or provincial governments are reserved certain independent powers. The relative strength of state or provincial governments to that of their respective federal government varies from country to country, but normally the federal government has wider authority.

 

Federal and state or provincial governments are likely to share the space of fraud-related laws. For instance, a state or provincial government might prohibit embezzlement from any party within its jurisdiction, while the federal government has a separate law prohibiting embezzlement against national banks. The laws among states and provinces and the federal government also might differ. For example, one province might restrict pre-employment criminal background checks, but the other provinces and the federal government might not.

While not always the case, geographically large countries tend to be federations, such as Russia, Canada, the United States, Brazil, Australia, and India.

 

One government body that does not easily fit either a unitary or federal classification is the European Union (EU), which is made up of many countries that are generally considered autonomous. At the same time, the EU has considerable power to create mandatory directives for members to implement substantive and procedural laws. Each member institutes its own version of substantive laws required by the EU, so the laws of the relevant country are the primary determinant of legal issues in fraud cases occurring there.

 

Merits of Unitary Form of Government

• Suitable for small countries.
• There is no conflict of authority and responsibility.
• A unitary government will make prompt decisions and take speedy action.
• A unitary government is less expensive.
• Amendments to the constitution are easy.
• There is unity, uniformity of law, policy and administration.

 

De-Merits of Unitary Form Government

• It is not suitable for big countries.
  • The central government will have to tackle so many complex problems that lead to administrative delay.
  • The central government will not concentrate on local problems, local interest and initiative.

 

 

 

 

Federalism

Federalism is a mixed or compound mode of government that combines a general government (the central or “federal” government) with regional governments (provincial, state, cantonal, territorial or other sub-unit governments) in a single political system, dividing the powers between the two. With roots in ancient Europe, federalism in the modern era was first adopted in the unions of states during the Old Swiss Confederacy.

Federalism differs from confederalism, in which the general level of government is subordinate to the regional level, and from devolution within a unitary state, in which the regional level of government is subordinate to the general level. It represents the central form in the pathway of regional integration or separation, bounded on the less integrated side by confederalism and on the more integrated side by devolution within a unitary state.

Examples of a federation or federal province or state include Argentina, Australia, Belgium, Bosnia & Herzegovina, Brazil, Canada, Germany, India, Malaysia, Mexico, Nepal, Nigeria, Pakistan, Russia, Switzerland, and United States. Some characterize the European Union as the pioneering example of federalism in a multi-state setting, in a concept termed the “federal union of states”.

 

In the narrow sense, federalism refers to the mode in which the body politic of a state is organized internally, and this is the meaning most often used in modern times. Political scientists, however, use it in a much broader sense, referring instead to a “multi-layer or pluralistic concept of social and political life.”

 

The first forms of federalism took place in ancient times, in the form of alliances between states. Some examples from the seventh to second century B.C. were the Archaic League, the Aetolic League, the Peloponnesian League, and the Delian League. An early progenitor of federalism was the Achaean League in Hellenistic Greece. Unlike the Greek city states of Classical Greece, each of which insisted on keeping its complete independence, changing conditions in the Hellenistic period drove many city states to band together even at the cost of losing part of their sovereignty. Subsequent unions of states included the first and second Swiss Confederations (1291–1798 and 1815–48), the United Provinces of the Netherlands (1579–1795), the German Bund (1815–66), the first American union known as the Confederation of the United States of America (1781–89), and second American union formed as the United States of America (1789–1865).

 

Political theory

Modern federalism is a political system based upon democratic rules and institutions in which the power to govern is shared between national and provincial/state governments. The term federalist describes several political beliefs around the world depending on context. Since the term federalization also describes distinctive political processes, its use as well depends on the context.

 

In political theory, two main types of federalization are recognized:

integrative, or aggregative federalization, designating various processes like: integration of non-federated political subjects by creating a new federation, accession of non-federated subjects into an existing federation, or transformation of a confederation into a federation devolutive,  or dis-aggregative federalization: transformation of a unitary state into a federation

 

Reasons for adoption

According to Daniel Ziblatt, there are four competing theoretical explanations in the academic literature for the adoption of federal systems:

 

Ideational theories, which hold that a greater ideological commitment to decentralist ideas in society makes federalism more likely to be adopted.

Cultural-historical theories, which hold that federal institutions are more likely to be adopted in societies with culturally or ethnically fragmented populations.

“Social contract” theories, which hold that federalism emerges as a bargain between a center and a periphery where the center is not powerful enough to dominate the periphery and the periphery is not powerful enough to secede from the center.

“Infrastructural power” theories, which hold that federalism is likely to emerge when the subunits of a potential federation already have highly developed infrastructures (e.g. they are already constitutional, parliamentary, and administratively modernized states).

Immanuel Kant noted that “the problem of setting up a state can be solved even by a nation of devils” so long as they possess an appropriate constitution which pits opposing factions against each other with a system of checks and balances. In particular individual states required a federation as a safeguard against the possibility of war.

Proponents for federal systems have historically argued that the power-sharing inherent in federal systems reduce both domestic security threats and foreign threats, as federalism allows states to be large and diverse without the risk that a tyrannical government through centralization of powers.

 

Examples

Many countries have implemented federal systems of government with varying degree of central and regional sovereignty. The federal government of these countries can be divided into minimalistic federations, consisting of only two sub-federal units or multi-regional, those that consist of three to dozens of regional governments. They can also be grouped based on their body polity type, such as emirate, provincial, republican or state federal systems. Another way to study federated countries is by categorizing them into those whose entire territory is federated as opposed to only part of its territory comprising the federal portion of the country. Some federal systems are national systems while others, like the European Union are supra national.

In general, two extremes of federalism can be distinguished: at one extreme, the strong federal state is almost completely unitary, with few powers reserved for local governments; while at the other extreme, the national government may be a federal state in name only, being a confederation in actuality. Federalism may encompass as few as two or three internal divisions, as is the case in Belgium or Bosnia and Herzegovina.

The governments of Argentina, Australia, Brazil, India, and Mexico, among others, are also organized along federalist principles.

 

In Canada, federalism typically implies opposition to sovereigntist movements (most commonly Quebec separatism).In 1999, the Government of Canada established the Forum of Federations as an international network for exchange of best practices among federal and federalizing countries. Headquartered in Ottawa, the Forum of Federations partner governments include Australia, Brazil, Ethiopia, Germany, India, Mexico, Nigeria, Pakistan and Switzerland.

 

Europe vs. the United States

In Europe, “federalist” is sometimes used to describe those who favor a common federal government, with distributed power at regional, national and supranational levels. Most European federalists want this development to continue within the European Union. Although there are medieval and early modern examples of European states which used confederal and federal systems, contemporary European federalism originated in post-war Europe; one of the more important initiatives was Winston Churchill‘s speech in Zürich in 1946.

In the United States, federalism originally referred to belief in a stronger central government. When the U.S. Constitution was being drafted, the Federalist Party supported a stronger central government, while “Anti-Federalists” wanted a weaker central government. This is very different from the modern usage of “federalism” in Europe and the United States. The distinction stems from the fact that “federalism” is situated in the middle of the political spectrum between a confederacy and a unitary state. The U.S. Constitution was written as a reaction to the Articles of Confederation, under which the United States was a loose confederation with a weak central government.

 

In contrast, Europe has a greater history of unitary states than North America, thus European “federalism” argues for a weaker central government, relative to a unitary state. The modern American usage of the word is much closer to the European sense. As the power of the U.S. federal government has increased, some people have perceived a much more unitary state than they believe the Founding Fathers intended. Most people politically advocating “federalism” in the United States argue in favor of limiting the powers of the federal government, especially the judiciary (see Federalist Society, New Federalism).

 

The contemporary concept of federalism came about with the creation of an entirely new system of government that provided for democratic representation at two governing levels simultaneously, which was implemented in the US Constitution. In the United States implementation of federalism, a bicameral general government, consisting of a chamber of popular representation proportional to population (the House of Representatives), and a chamber of equal State-based representation consisting of two delegates per State (the Senate), was overlaid upon the pre-existing regional governments of the thirteen independent States. With each level of government allocated a defined sphere of powers, under a written constitution and the rule of law (that is, subject to the independent third-party arbitration of a supreme court in competence disputes), the two levels were thus brought into a coordinate relationship for the first time.

 

In 1946, Kenneth Wheare observed that the two levels of government in the US were “co-equally supreme”. In this, he echoed the perspective of American founding father James Madison who saw the several States as forming “distinct and independent portions of the supremacy” in relation to the general government.

 

Constitutional structure

Division of powers

In a federation, the division of power between federal and regional governments is usually outlined in the constitution. Almost every country allows some degree of regional self-government, but in federations the right to self-government of the component states is constitutionally entrenched. Component states often also possess their own constitutions which they may amend as they see fit, although in the event of conflict the federal constitution usually takes precedence.

 

In almost all federations the central government enjoys the powers of foreign policy and national defense as exclusive federal powers. Were this not the case a federation would not be a single sovereign state, per the UN definition. Notably, the states of Germany retain the right to act on their own behalf at an international level, a condition originally granted in exchange for the Kingdom of Bavaria‘s agreement to join the German Empire in 1871. Beyond this the precise division of power varies from one nation to another. The constitutions of Germany and the United States provide that all powers not specifically granted to the federal government are retained by the states. The Constitution of some countries like Canada and India, state that powers not explicitly granted to the provincial governments are retained by the federal government. Much like the US system, the Australian Constitution allocates to the Federal government (the Commonwealth of Australia) the power to make laws about certain specified matters which were considered too difficult for the States to manage, so that the States retain all other areas of responsibility. Under the division of powers of the European Union in the Lisbon Treaty, powers which are not either exclusively of Union competence or shared between the Union and the Member States as concurrent powers are retained by the constituent States.

Where every component state of a federation possesses the same powers, we are said to find ‘symmetric federalism’. Asymmetric federalism exists where states are granted different powers, or some possess greater autonomy than others do. This is often done in recognition of the existence of a distinct culture in a particular region or regions.

 

In Spain, the Basques and Catalans, as well as the Galicians, spearheaded a historic movement to have their national specificity recognized, crystallizing in the “historical communities” such as Navarre, Galicia, Catalonia, and the Basque Country. They have more powers than the later expanded arrangement for other Spanish regions, or the Spain of the autonomous communities (called also the “coffee for everyone” arrangement), partly to deal with their separate identity and to appease peripheral nationalist leanings, partly out of respect to specific rights they had held earlier in history. However, strictly speaking Spain is not a federation, but a system of asymmetric devolved government within a unitary state.

 

It is common that during the historical evolution of a federation there is a gradual movement of power from the component states to the centre, as the federal government acquires additional powers, sometimes to deal with unforeseen circumstances. The acquisition of new powers by a federal government may occur through formal constitutional amendment or simply through a broadening of the interpretation of a government’s existing constitutional powers given by the courts.

 

Usually, a federation is formed at two levels: the central government and the regions (states, provinces, territories), and little to nothing is said about second or third level administrative political entities. Brazil is an exception, because the 1988 Constitution included the municipalities as autonomous political entities making the federation tripartite, encompassing the Union, the States, and the municipalities. Each state is divided into municipalities (municípios) with their own legislative council (câmara de vereadores) and a mayor (prefeito), which are partly autonomous from both Federal and State Government. Each municipality has a “little constitution”, called “organic law” (lei orgânica). Mexico is an intermediate case, in that municipalities are granted full-autonomy by the federal constitution and their existence as autonomous entities (municipio libre, “free municipality”) is established by the federal government and cannot be revoked by the states’ constitutions. Moreover, the federal constitution determines which powers and competencies belong exclusively to the municipalities and not to the constituent states. However, municipalities do not have an elected legislative assembly.

Federations often employ the paradox of being a union of states, while still being states (or having aspects of statehood) in themselves. For example, James Madison (author of the US Constitution) wrote in Federalist Paper No. 39 that the US Constitution “is in strictness neither a national nor a federal constitution; but a composition of both. In its foundation, it is federal, not national; in the sources from which the ordinary powers of the Government are drawn, it is partly federal, and partly national…” This stems from the fact that states in the US maintain all sovereignty that they do not yield to the federation by their own consent. This was reaffirmed by the Tenth Amendment to the United States Constitution, which reserves all powers and rights that are not delegated to the Federal Government as left to the States and to the people.

 

Bicameralism

The structures of most federal governments incorporate mechanisms to protect the rights of component states. One method, known as ‘intrastate federalism‘, is to directly represent the governments of component states in federal political institutions. Where a federation has a bicameral legislature the upper house is often used to represent the component states while the lower house represents the people of the nation as a whole. A federal upper house may be based on a special scheme of apportionment, as is the case in the senates of the United States and Australia, where each state is represented by an equal number of senators irrespective of the size of its population.

 

Alternatively, or in addition to this practice, the members of an upper house may be indirectly elected by the government or legislature of the component states, as occurred in the United States prior to 1913, or be actual members or delegates of the state governments, as, for example, is the case in the German Bundesrat and in the Council of the European Union. The lower house of a federal legislature is usually directly elected, with apportionment in proportion to population, although states may sometimes still be guaranteed a certain minimum number of seats.

 

Intergovernmental relations

In Canada, the provincial governments represent regional interests and negotiate directly with the central government. A First Ministers conference of the prime minister and the provincial premiers is the de facto highest political forum in the land, although it is not mentioned in the constitution.

 

Constitutional change

Federations often have special procedures for amendment of the federal constitution. As well as reflecting the federal structure of the state this may guarantee that the self-governing status of the component states cannot be abolished without their consent. An amendment to the constitution of the United States must be ratified by three-quarters of either the state legislatures, or of constitutional conventions specially elected in each of the states, before it can come into effect. In referendums to amend the constitutions of Australia and Switzerland it is required that a proposal be endorsed not just by an overall majority of the electorate in the nation as a whole, but also by separate majorities in each of a majority of the states or cantons. In Australia, this latter requirement is known as a double majority.

 

Some federal constitutions also provide that certain constitutional amendments cannot occur without the unanimous consent of all states or of a particular state. The US constitution provides that no state may be deprived of equal representation in the senate without its consent. In Australia, if a proposed amendment will specifically impact one or more states, then it must be endorsed in the referendum held in each of those states. Any amendment to the Canadian constitution that would modify the role of the monarchy would require unanimous consent of the provinces. The German Basic Law provides that no amendment is admissible at all that would abolish the federal system.

 

Other technical terms

Fiscal federalism – the relative financial positions and the financial relations between the levels of government in a federal system.

Formal federalism (or ‘constitutional federalism’) – the delineation of powers is specified in a written constitution, which may or may not correspond to the actual operation of the system in practice.

Executive federalism refers in the English-speaking tradition to the intergovernmental relationships between the executive branches of the levels of government in a federal system and in the continental European tradition to the way constituent units ‘execute’ or administer laws made centrally.

Gleichschaltung – the conversion from a federal governance to either a completely unitary or more unitary one, the term was borrowed from the German for conversion from alternating to direct current.[24] During the Nazi era the traditional German states were mostly left intact in the formal sense, but their constitutional rights and sovereignty were eroded and ultimately ended and replaced with the Gau system. Gleichschaltung also has a broader sense referring to political consolidation in general.

defederalize – to remove from federal government, such as taking a responsibility from a national level government and giving it to states or provinces

 

Conflict reducing device

It has been argued that federalism and other forms of territorial autonomy are a useful way to structure political systems in order to prevent violence among different groups within countries because it allows certain groups to legislate at the subnational level. Some scholars have suggested, however, that federalism can divide countries and result in state collapse because it creates proto-states. Still others have shown that federalism is only divisive when it lacks mechanisms that encourage political parties to compete across regional boundaries.

Federalism is sometimes viewed in the context of international negotiation as “the best system for integrating diverse nations, ethnic groups, or combatant parties, all of whom may have cause to fear control by an overly powerful center.” However, those skeptical of federal prescriptions sometimes believe that increased regional autonomy can lead to secession or dissolution of the nation. In Syria, for example, federalization proposals have failed in part because “Syrians fear that these borders could turn out to be the same as the ones that the fighting parties have currently carved out.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER THREE

THE COURT SYSTEM

The Courts operate two levels:  Superior Courts and Subordinate Courts. The important aspects in the Structure of Courts are:

1. The structure – The hierarchy or levels of Courts.
2. Establishment – The composition or who presides in that Court.

• Jurisdiction – The powers of different Courts to hear and determine disputes.

Jurisdictions are either Geographical / territorial limits of their powers or Functional powers (to hear Original matter, Appellate matter or both matters or subject matter (whether it is civil or criminal justice) or Pecuniary (the range of monetary or financial value of subject matter).

The figure illustrates the structure and explains the hierarch of the Courts as it is today in Kenya.